Supreme Court Not Likely to Rule this Term on Issues Affecting Transgender Students’ Access to Restrooms that Correspond with their Gender Identity

The Supreme Court recently lost an opportunity to address important issues affecting transgender students. On August 25, 2017, the Kenosha Unified School District filed a petition for certiorari after the Seventh Circuit affirmed a Wisconsin District Court’s decision granting a transgender student a preliminary injunction to use the bathroom that corresponds with his gender identity, rather than his biological sex.

In its petition for certiorari, the school board presented the following issues: (1) whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is sex stereotyping that constitutes discrimination “based on sex” in violation of Title IX; and (2) whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is a sex-based classification triggering heightened scrutiny under an Equal Protection analysis.

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